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Burns v. The Winroc Corp.: US District Court : EMPLOYMENT - retaliation, negligence. claims fail; hostile work environment claims proceed

Civil No. 06-4373 (JRT/FLN)
Sheila K.K. Dokken and Lori C. Peterson, LORI PETERSON &
ASSOCIATES, 10 South Fifth Street, Suite 700, Minneapolis, MN 55402,
for plaintiffs.
Richard M. Dahl, Amy L. De Kok, and Katherine E. Becker, MADIGAN,
DAHL & HARLAN, P.A., 701 Fourth Avenue South, Suite 1700,
Minneapolis, MN 55415, for defendant.
Plaintiffs Tyrone Burns and Marvin Dortch are African-Americans employed by
defendant The Winroc Corporation (Midwest). Plaintiffs brought this action against
defendant under 42 U.S.C. 1981, Title VII, and the Minnesota Human Rights Act
(MHRA), alleging a racially hostile work environment and retaliation in response to
their discrimination complaints. Plaintiffs also bring a claim for common law negligence.
This case is now before the Court on defendants motion for summary judgment. For the
reasons set forth below, defendants motion is granted in part and denied in part.
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Defendant is the Midwest affiliate of a corporation headquartered in Calgary,
Canada. Defendants primary business is supplying building and construction materials
to contractors in and around Minneapolis and St. Paul. Defendant has two distribution
centers in Minnesota, in Oakdale and Bloomington.
Plaintiff Burns was hired by defendant in September 2001. Burns eventually
became a delivery driver, and was assigned his own delivery truck in 2003. Plaintiff
Dortch was hired by defendant in August 2003. In early 2004, Dortch began working as
a driver as well. Both plaintiffs are African-American, and both allege that their tenure
with defendant has been marked by a pattern of racially discriminatory behavior. The
alleged content of that discrimination is set forth in detail below.
Burns testified that several months after he was hired, he was scheduled to work a
shift with John Mahoney. Before the shift began, Burns recalls one of his supervisors
pulling him aside to warn him. Dan Burger, the supervisor, told him that he was kind of
worried about [Mahoney] saying racist, black jokes. (Dokken Aff., Ex. 1 at 272.)
Burger told Burns [j]ust kind of brush it off, dont pay him no attention. (Id.) The next
day, Mahoney threw a telephone, and told Burns to fetch, boy. (Id. at 171.) Burns
reported the comment to Burger, one of his supervisors. According to Burns, Burger
responded by saying well, you know, some of the guys here are you know, thats just
1 The Court views the facts and evidence in the record in the light most favorable to
plaintiffs, the non-moving party. Riley v. Lance, 518 F.3d 996, 999 (8th Cir. 2008).
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the way that they are, some of them . . . you know, try not to pay it no attention. (Id. at
Burns also alleges that co-workers would approach him to tell black jokes.
(Dokken Aff., Ex. 1 at 172-73.) Burns notes that in telling these jokes, his co-workers
would frequently use the word nigger. (Id.)2 Burns indicates that he reported these
incidents to Burger, telling him I just dont understand, you know, how, you know, guys
just feel comfortable just saying that word [nigger] around me. (Dokken Aff., Ex. 1 at
179.) According to Burns, Burger responded that some of the guys are just ignorant
and, you know, try not to pay it too much attention. (Id. at 173.) Burger added,
however, [i]f it gets too out of hand . . . let me know, Ill take care of it, because you
shouldnt have to hear that word if youre not comfortable with it. (Dokken Aff., Ex. 1
at 179.)
Burns alleges that in another incident, one of his co-workers referred to a former
African-American employee as a straight-out nigger, in a conversation in the
breakroom. (Dokken Aff., Ex. 1 at 182.) Burns recalls the rest of his co-workers looked
2 As an example of one of these jokes, Burns recounts the following contribution from
co-worker Dave Strecker:
Two black guys walking down the street and there was a sign that said, You can
be white for a dollar or whatever, and the one had a dollar and the other one had
98 cents, and . . . the one that had the dollar said, Well, Ill tell you what, he said,
Ill go in first and Ill see if it works and then if it comes out when I get the
change, Ill give you the penny and you can go in or whatever or give you the
dollar. . . . And he said the guy went in there and came out with the dollar and he
said, Hey, man, this works. And he said, Well, hey, man, let me go in there and
be white or whatever, and he says, Nigger, please, get a job[.]
(Dokken Aff., Ex. 1, at 176-77.)
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at him for his reaction, like I was going to really like jump up and fight or something
like that. (Id.) Burns alleges that Burger was present for this conversation, but did not
say anything.
Burns also describes an incident involving Nick Kipes, a co-worker who often
assisted both Burns and Dortch. Burns indicates that he and Kipes got into an argument,
and that Kipes just starts saying that Im sick of being on your guys truck and Im sick
of listening to that black radio station. (Dokken Aff., Ex. 1 at 190.) Burnss
interpretation of the exchange was that Kipes was basically tired of working with two
black guys. (Id.) Burns reported the incident to Burger, and requested that Kipes be
transferred to another truck. Burger responded that Burns should tell the fucker to shut
his mouth, and the transfer did not occur until about three months later. (Id.)
Burns recounts another incident that occurred when he brought his vehicle to work
just after having spinning rims put on. Burns was showing the rims to a group of coworkers
that included Dortch and Jim Miller. Karl Spott, another co-worker, approached
the group and said Im not a racist or nothing, but youre really starting to act like a
nigger now. (Dokken Aff., Ex. 1 at 197.) Burns describes the reaction of Jim Miller,
who would later become one of defendants managers, as follows: Just smoked his
cigarette and that was it. Kind of he kind of smirked after I kind of didnt respond to
it. (Id. at 199.)
Burns also recounted the following incident involving Mark Wills, yet another coworker:
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[W]hen he first came over to Bloomington he made a comment about
Marvin looking like Ving Rhames. And one of the things that he said was
he was talking about a movie called Rosewood. Well in this movie,
Rosewood, it was they were hanging people and he talked about how
when they had Ving Rhames on the they had his neck in the noose and
how when they made the horse move, how his lips were shaking. And he
goes, Man, did you see that fuckers lip, how that lip was just shaking, and
just laughing about it.
(Dokken Aff., Ex. 1 at 212-13.)
Burns also generally recalls hearing comments about how African-American men
have big penises, are lazy, and are criminals. The comments included a specific incident
where one co-worker told other co-workers that he believed Burns sold drugs, because
Burns had purchased a 0,000 home. (Id. at 286-87.) Burns notes that Jim Miller
was right there and he heard about it, and that the incident was later the subject of a
meeting between Burns and the co-worker. (Id. at 287.)
Defendant acknowledges that plaintiff Burns had made reports to Burger, as
described above, but notes that he never filed a formal complaint in accordance with its
employment policy manual and never invoked union grievance procedures. Defendant
also alleges that Burns never used an employee confidence line available for
anonymous complaints.
Dortchs allegations substantially replicate those of Burns. He too recalls
numerous black jokes, various uses of the word nigger, and both the spinning rims
incident and the Rosewood incident. Dortch never made any race discrimination or
harassment complaints following these incidents. Dortch avers that he was fearful that if
he made such complaints or initiated this lawsuit he would lose his job, because I
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saw the level of the respect in the workplace was so lax when racial threats, gestures or
inappropriate comments were seen by management as jokes. (Dortch Aff., 3.)
Plaintiffs allege that this pattern was followed by a particularly severe incident in
January 2006. Defendants Bloomington facility includes a warehouse where drivers
park delivery trucks overnight. On the evening of January 18, 2006, a Thursday, Burnss
delivery truck was the only truck parked in the Bloomington warehouse, indicating that
he would be returning to the warehouse on the following workday. When Burns arrived
at the warehouse the next morning, he discovered a noose slung over electrical wires near
a warehouse bathroom. The noose was hanging in a vertical fashion, in the manner in
which it would appear if it were being used for a hanging. This discovery came just days
after Martin Luther King Jr. Day. Both plaintiffs allege that they were in the warehouse
the prior week and had not seen the noose. This led plaintiffs to conclude that the noose
was both intended to coincide with the holiday and intended to greet Burns when he
arrived for his truck.
Burns brought Dortch to see the noose and took photographs of it, but did not
immediately report it to supervisors or management. Burns states that he expected
defendant or other employees to notice the noose and remove it on their own. On the
following Monday, January 23, however, Burns observed that the noose was still up.
Burns then reported the noose to Mark Benson, one of his supervisors in the warehouse,
and informed Benson that he was offended. According to Burns, Benson suggested that
the noose had been made by Wills, the employee who suggested that Dortch resembled a
movie character being lynched. Benson suggested that the noose had been up since the
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prior summer, when Wills was playing around with it. (Dokken Aff., Ex. 1 at 205-06,
219-20.) Burns responded that he knew the noose had not been up since the summer
because he had been in the warehouse the week before. Benson took the noose down, but
told Burns that [i]t aint no big deal. (Id.)
Burns then reported the noose directly to Jim Miller, one of defendants managers.
At some point Benson entered this conversation and again suggested that the noose had
been up since the prior summer. (Dokken Aff., Ex. 1, at 227-28.) Miller responded [i]t
doesnt matter if it was up there since the summer. It should have never been up there,
period. (Id at 228.) Dortch then entered the conversation as well, and when a co-worker
asked him about the significance of the noose, he responded:
[T]hat it was a way of hanging, you know, slaves and things like that and
just black people and it was almost like over time took over as like a
symbol as just the killing of black people. And it happened to be, you
know, Martin Luther Kings birthday week to make it, you know, more
relevant or what-not, or just to take it that way completely.
(Dokken Aff., Ex. 2, at 141.) According to Dortch, following these comments Benson
stated I took it down. Its no big deal no more. Its over, you know. (Id.)
Miller approached Dortch that afternoon and told him that he had discussed the
matter with Al Miller, defendants general manager for Minnesota. Al Miller was away
on business, but was interested in meeting with plaintiffs when he returned.
One or two days later, Wills approached plaintiffs to offer an apology. Wills
admitted that he had hung the noose, but said that it was a joke, that he had hung the
noose earlier in the year, and that it was not directed at plaintiffs. Dortch believed that
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Wills was smirking during the apology, and neither plaintiff believed that the apology
was sincere.
On January 25, 2006, plaintiffs met with both Jim Miller and Al Miller. Al Miller
told the plaintiffs that they were going to investigate the incident, but that they had been
told that the noose was simply a joke carried out by Wills. Dortch responded that he was
highly offended, and suggested suspending Wills. (Dokken Aff., Ex. 2, at 143-44.)
Burns suggested that Wills be transferred to defendants Oakdale facility. (Id.) Either
Jim Miller or Al Miller responded that such a step would be difficult because Wills is a
union member, and insisted that they would follow up with further investigation. (Id.)
When plaintiffs asked Jim Miller about the investigation a month later, Miller told him
were still working on it. (Dokken Aff., Ex. 1, at 251.)
Defendant contends that at the time of this investigation, it was not aware of any
evidence that the noose had been put up the prior week, and was not informed of any
prior racial incidents. Defendant also contends that Willss story about the rope having
been up since the prior summer was corroborated. Defendant points to Bensons
statements that the noose had been up since the prior summer and to a similar statement
from Paul Courchane, another of defendants employees. Defendant later concluded that
Courchanes story of the noose being hung in connection with some form of non-racist,
unrelated joke, was unsubstantiated. (Memorandum in Support of Motion for Summary
Judgment, at 13.) Defendant contends, however, that the state of the evidence at the time
of its investigation supported this conclusion. It is undisputed that Wills was not
disciplined in any way for the incident.
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On February 8, 2006, Burns filed a complaint with the Equal Employment
Opportunity Commission (EEOC). On March 15, 2006, Dortch did the same.
Plaintiffs allege that following these complaints, defendant retaliated against them.
Burns notes that he was reprimanded for violating a company policy restricting
personal cell phone use. (Dokken Aff., Ex. 1, at 143-44.) Burns alleges that other
employees were routinely permitted to use cell phones for personal use, and that he was
unfairly singled out. Burns also alleges that after reporting the noose, Burger unfairly
criticized his work and cursed at him. In addition, Burns got into an altercation with
another employee, who told him to shut [his] fucking mouth and do as [he] is fing
told. Burns responded by telling the employee that I would rip his kidneys out or I
would take his kidneys out and I would feed it to him. (Dokken Aff., Ex. 1, at 148.)
Burns and the other employee were both suspended for the incident. Both plaintiffs add
that other employees mocked them for reporting the noose, and Burns alleges that other
employees began to get more hours than him, despite his seniority. The EEOC issued a
right to sue letter on August 31, 2006, and this action followed.
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
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return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In counts 1 and 3 of their complaint, plaintiffs contend that defendant subjected
them to a hostile work environment in violation of 42 U.S.C. 1981, Title VII, and the
MHRA.3 Defendant first argues that several of the factual allegations underlying
plaintiffs claims are time-barred. Before filing a civil action under Title VII, a person
must file a charge with the EEOC within 300 days after the alleged unlawful
employment practice occurred. 42 U.S.C. 2000e-5(e). Under the MHRA, a plaintiff
must either file an administrative charge of discrimination or commence a lawsuit within
one year of the offending conduct. See Minn. Stat. 363A.28, subd. 3. As noted above,
Burns initially filed an administrative charge of discrimination on February 17, 2006, and
Dortch initially filed his charge on March 15, 2006. Defendant notes that numerous
incidents described by plaintiffs occurred more than 300 days and/or more than one year
prior to those dates.
As plaintiffs point out, however, [p]rovided that an act contributing to the claim
occurs within the filing period, the entire time period of the hostile environment may be
3 At oral argument, plaintiffs confirmed that they do not intend to pursue any other race
discrimination claims in addition to their hostile work environment claims.
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considered by a court for the purposes of determining liability. Natl R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 117 (2002). Here, the incident involving the noose
indisputably occurred within the filing period for both Title VII and the MHRA.
Accordingly, the Court considers plaintiffs allegations in their entirety.
Defendant next argues that plaintiffs have failed to establish a prima facie case for
a hostile work environment claim. To meet their burden, plaintiffs must show that:
(1) they belong to a protected group; (2) they were subjected to unwelcome harassment;
(3) a causal nexus exists between the harassment and their group membership; and (4) the
harassment affected a term, condition, or privilege of their employment. Elnashar v.
Speedway SuperAmerica, LLC, 484 F.3d 1046, 1059 (8th Cir. 2007). Harassment which
is severe and pervasive is deemed to affect a term, condition, or privilege of
employment. Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 652 (8th Cir. 2003).
In addition, for claims of harassment by non-supervisory personnel, [plaintiffs] must
show that [their] employer knew or should have known of the harassment and failed to
take proper action. Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1195 (8th
Cir. 2006).
Taking the evidence in the light most favorable to plaintiffs, there is no serious
dispute as to whether they belong to a protected group, were subjected to unwelcome
harassment, or whether the harassment was connected to their group membership. The
Court focuses its analysis, then, on whether this harassment was sufficient to alter the
terms, conditions, or privileges of plaintiffs employment, whether defendant knew, or
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should have known, of this harassment, and whether defendant took proper remedial
A. Severe and Pervasive Harassment
In determining whether plaintiffs have provided sufficient evidence of severe and
pervasive harassment, the Court begins with the noose incident. As has been noted
[T]he noose is among the most repugnant of all racist symbols, because it is
itself an instrument of violence. It is impossible to appreciate the impact of
the display of a noose without understanding this nation's opprobrious
legacy of violence against African-Americans. One study notes that from
1882, the earliest date for reliable statistics, to 1968, 3,446 African-
Americans died at the hands of lynch mobs.
* * *
The effect of such violence on the psyche of African-Americans cannot be
Williams v. N.Y. City Housing Auth., 154 F. Supp. 2d 820, 823-24 (S.D.N.Y. 2001)
(citations omitted). In short, defendants occasional descriptions of the noose as a mere
rope are woefully out of touch both with this nations history and with the shameful but
inescapable significance of this symbol. Taking the evidence in the light most favorable
to the plaintiffs, this symbol was displayed in defendants warehouse just days after the
holiday celebrating the life of Martin Luther King Jr. Moreover, the noose was
discovered after an evening when the truck assigned to Burns was the only one parked in
the warehouse, suggesting that Burns was intended to see it. This incident alone is strong
evidence of harassment sufficient to alter the terms, conditions, and privileges of
plaintiffs employment. Cf. Moring v. Arkansas Dept of Corr., 243 F.3d 452, 456 (8th
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Cir. 2001) ([W]e are unaware of any rule of law holding that a single incident can never
be sufficiently severe to be hostile-work-environment sexual harassment.).
In addition, plaintiffs have described a series of racially hostile comments,
including (1) the fetch, boy comment; (2) racist jokes; (3) multiple uses of the word
nigger; and (4) a suggestion that Dortch resembled an African-American being lynched,
made by the very employee who later admitted hanging the noose. In addition to this
language being offensive on its own, in each case the context for the comments amplifies
their severity. As to the fetch, boy comment, Burns testified that (1) he was
specifically warned by a supervisor that Mahoney may make racist comments;
(2) Mahoney made such comments; and (3) the supervisor told Burns that he should try
not to pay attention. Burgers warning suggests that defendant was aware of Mahoneys
conduct, that it had been consistent enough to attract attention, and that defendant had not
corrected it. As to the jokes and uses of the word nigger some of which allegedly
happened in the presence of supervisors Burns alleges that he was again told not to pay
attention. Moreover, in one instance, Burns testified that his co-workers looked to him
expecting a fight, suggesting a particularly hostile situation. Finally, the lynching
comment was of course followed by the hanging of an actual noose.
Defendant notes that the Eighth Circuit has addressed offensive language similar
to that at issue here, and found it insufficient to demonstrate a hostile work environment.
See, e.g., Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1035-36 (8th Cir. 2006).
Moreover, while the incidents described by plaintiffs were undoubtedly offensive, they
appear to have been spread over the course of several years. See Green v. Franklin Natl
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Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) ([I]f comments are sporadic . . .
they are unlikely to establish a hostile work environment claim.) (quotation omitted).
As plaintiffs point out, however, none of the cases cited by defendant also involved a
noose. While offensive comments alone may often be insufficient, this Court sees no
reason why they may not be considered a relevant factor or viewed in a different light
when they are accompanied by more serious incidents, such as the central incident at
issue here. See Baker v. John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004) ([W]e
view the totality of the circumstances in determining whether there is a hostile work
environment.); Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997) (A work
environment is shaped by the accumulation of abusive conduct, and the resulting harm
cannot be measured by carving it into a series of discrete incidents.) (quotations
omitted). The noose incident not only is extreme in its own right; it, along with
defendants response addressed below, also lends credibility to plaintiffs further
allegations, and the notion that a poisonous environment existed at earlier times as well.
Taking the evidence of all of these incidents together, in the light most favorable to the
plaintiffs, this Court concludes that there is sufficient evidence of severe and pervasive
harassment that altered the terms, conditions, or privileges of plaintiffs employment.
B. Defendants Knowledge of the Harassment
As to whether defendant knew or should have known of the harassment, see
Gordon, 469 F.3d at 1195, the Court finds sufficient evidence in the record to satisfy this
requirement as well. As an initial matter, defendant was indisputably made aware of the
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noose. Defendant contends that it was not clear that this was a racially hostile gesture, in
light of the information that was available at the time of its investigation. Taking the
facts in the light most favorable to the plaintiffs, however, this incident provided notice of
extreme racial hostility. The noose alone was suggestive of racial violence, for the
reasons discussed above. Indeed lest there be any danger of defendant overlooking this
significance plaintiffs specifically informed defendants managers that this was their
interpretation. In addition, Jim Miller, one of the investigators, had allegedly witnessed
another employee referring to Burns as a nigger. Moreover, while defendant contends
that Willss story was initially corroborated, it concedes that Courchanes
corroboration later turned out to be unsubstantiated. This shift in the evidence would
have been further reason to be suspicious. In sum, there is a genuine issue of material
fact as to whether defendant had notice of the nooses racial implications.
As to defendants knowledge of the earlier incidents, viewing the evidence in the
light most favorable to the plaintiffs, (1) Burger, a supervisor,4 specifically warned Burns
that he may be subjected to racial harassment, and then was notified when his prediction
was fulfilled; (2) Burger was informed of racist jokes and uses of the word nigger;
(3) Burger witnessed a use of the word nigger without intervening; and (4) as noted
above, Jim Miller witnessed a use of the word nigger before he became a manager.
This Court agrees that plaintiffs case is weakened by their failure to officially report
each of the incidents they have alleged. However, a plaintiff is not necessarily required
4 While defendant sought to minimize Burgers stature at oral argument, it ultimately
conceded that he was a supervisor.
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to report the harassment through an official complaint procedure. Engel v. Rapid City
Sch. Dist., 506 F.3d 1118, 1124 (8th Cir. 2007). Here, Burns described several informal
reports to Burger, one of his supervisors. Pursuant to defendants employment policy
manual, whenever harassment was brought to [Burgers] attention, he was required to
either report or deal with the incident. (Dahl Aff., Ex. A, Doc. 2.)
Moreover, [i]f authorized agents with a reporting duty (or persons reasonably
believed to have such a duty) acquire knowledge of . . . harassment, then the corporation
acquired such knowledge. Sims v. Health Midwest Physician Servs. Corp., 196 F.3d
915, 921 (8th Cir. 1999). Here, defendants employment policy manual includes the
requirement that supervisors make a report to the general manager of human resources
whenever they either receive a report of harassment or observe it. (Dahl Aff., Ex. A,
Doc. 2.) Taking the evidence in the light most favorable to the plaintiffs, Burger was
aware of Mahoneys prior harassment, in addition to his harassment of Burns; made
repeated comments indicating awareness that some of the guys were likely to express
racist sentiments; was aware of multiple uses of the word nigger and racist jokes; and
witnessed an incident where an employee used the word nigger, in circumstances where
other employees expected Burns to want to fight. In addition, Jim Miller was aware of
the spinning rims incident, and carried that knowledge with him when he became a
manager. While it is unclear whether this knowledge would have been sufficient for a
hostile work environment claim on its own, when placed alongside the noose incident it
creates a genuine issue of material fact as to defendants knowledge of severe and
pervasive racial hostility.
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C. Defendants Response
Finally, the Court concludes that there is sufficient evidence that defendant failed
to take proper remedial action. As to the noose, defendant contends it responded
appropriately by conducting a thorough investigation, and came to a reasonable
conclusion that this particular noose was not an expression of racial hostility. For the
reasons discussed above, however, the Court concludes that there is a genuine issue of
material fact as to whether defendant had notice of the nooses racial significance. If
defendant had such notice, a jury may reasonably conclude that its failure to discipline
Wills in any way was grossly inadequate. Moreover, taking the evidence in the light
most favorable to plaintiffs, this lack of response was consistent with Burgers earlier
failure to address Mahoney, his failure to respond meaningfully to reports and
observations of racially hostile comments, and with Jim Millers alleged indifference to a
use of the word nigger. In short, there does not appear to be evidence of any meaningful
response to the racial harassment alleged by plaintiffs, let alone remedial action
reasonably calculated to end the harassment.5 Smith v. St. Louis Univ., 109 F.3d 1261,
1265 (8th Cir. 1997). Accordingly, this Court concludes that there is a genuine issue of
material fact as to whether defendant adequately responded to knowledge of severe and
pervasive racial harassment.
5 While defendant points to the recent disciplining of an employee who referred to Burns
as the black bandit, this response to a recent, separate incident is insufficient to address the
earlier, more severe harassment alleged by plaintiffs.
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In sum, there is sufficient evidence in the record for plaintiffs hostile work
environment claims to survive summary judgment. Accordingly, defendants motion for
summary judgment is denied as to counts 1 and 3 of plaintiffs complaint.
III. RETALIATION (Counts 2 and 4)
Plaintiffs also allege that defendant retaliated in response to their discrimination
complaints, in violation of Title VII, see 42 U.S.C. 2000e-3, 42 U.S.C. 1981, and the
MHRA, see Minn. Stat. 363A.15. To make out a prima facie case of retaliation,
plaintiffs must show: (1) they engaged in protected conduct; (2) reasonable employees
would have found the challenged retaliatory action materially adverse; and (3) the
materially adverse action was causally linked to the protected conduct. Weger v. City of
Ladue, 500 F.3d 710, 726 (8th Cir. 2007); see Devin v. Schwans Home Serv., Inc., 491
F.3d 778, 781, 785 (8th Cir. 2007) (applying this standard to retaliation claims brought
under the MHRA); Kim v. Nash Finch Co., 123 F.3d 1046, 1059 (8th Cir. 1997) (noting
that the elements of retaliation claims brought under 1981 and Title VII are the same).
The materially adverse action prong is objective, requiring us to consider whether a
reasonable employee in the plaintiffs position might have been dissuaded from making a
discrimination claim because of the employers retaliatory actions. Id. (quotations
Plaintiffs point to four examples of allegedly adverse actions: (1) general
ostracism and taunting inflicted by their co-workers; (2) Burnss suspension following his
altercation with a co-worker; (3) verbal reprimands directed at Burns for violations of a
- 19 -
company cell phone policy; and (4) criticism of Burnss work by a supervisor. The Court
concludes that on the basis of the record before it and the particular circumstances in
which these actions allegedly occurred plaintiffs have not made a sufficient showing of
a materially adverse action.
As to the comments from their co-workers, defendants have not alleged actions
that would have dissuaded a reasonable employee from making further complaints. As to
Burns, plaintiffs cite to just one instance where a co-worker mockingly asked if he was
going to file harassment charges, and then broadly asserts that this was being said by a
lot of people. (Dokken Aff., Ex. 1 at 290.) As to Dortch, plaintiffs also cite to just one
specific incident, where a co-worker mockingly asked another co-worker if he was
being racist by suggesting that Dortch had injured his hand. (Dokken Aff., Ex. 2 at
268.) Such stray comments from colleagues do not rise to the level necessary to establish
a materially adverse employment action. See Tademe Saint Cloud State Univ., 328 F.3d
982, 992 (8th Cir. 2003).
As to Burns suspension, he acknowledged in his deposition that this occurred
after an altercation where he told another employee that I would rip his kidneys out or I
would take his kidneys out and I would feed it to him. (Dokken Aff., Ex. 1 at 290.)
Burns does not allege that this altercation was related to race or his EEOC complaint, and
acknowledges that the other employee was also suspended for the incident. The Court
concludes that a suspension in those circumstances would not have deterred a reasonable
employee from making further discrimination complaints.
- 20 -
As to the cell phone incident, Burns acknowledges that he had used his cell phone
for personal reasons during work hours, and that defendant did not formally discipline
him in any way. Rather, Burns merely alleges that he was told to avoid having his cell
phone in his work truck, a claim defendant disputes. Burns also acknowledges that this
followed another cell phone incident two years earlier, when defendant discovered he had
run up a 0 bill on a company cell phone. Even assuming that Burns was restricted
from carrying his personal cell phone in his work truck, the Court concludes that this
informal resolution of an acknowledged, repeated rule violation is not sufficient to
constitute a materially adverse employment action.
As to the alleged criticism of his work, Burns points to a single day when Burger
cursed at him for not working quickly. While the fact that this occurred shortly after the
noose report is suspicious, this single incident of hostility is insufficient to constitute an
adverse employment action. Cf. Shockney v. Ramsey County, 493 F.3d 941, 950 (8th Cir.
Finally, Burns also alleges that defendant retaliated by reducing his work hours.
Such a material change in Burnss employment, if proven, would likely qualify as an
adverse employment action. See Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 859 (8th
Cir. 1998). Regardless of whether there is sufficient evidence of this reduction, however,
Burns has failed to provide sufficient evidence that it was causally connected to his
discrimination complaints. Plaintiffs brief does not offer a specific date for this work
reduction other than [s]ince his complaints. (Memorandum in Opposition to Summary
Judgment, at 10.) Nor do plaintiffs cite to anywhere in the record that includes a specific
- 21 -
date. (Id.) After an independent review of the record, this Court has uncovered just one
explanation of the specific reductions plaintiffs are alleging, and that explanation states
that it covers reductions that have occurred since October, 2006. (Dahl Aff., Ex. A.,
Doc. 10.) This falls approximately eight months after Burnss initial complaint to the
EEOC, and approximately seven months after the initial complaint by Dortch. In the
absence of any further evidence linking these changes to plaintiffs complaints or
evidence specifically detailing reductions that occurred at an earlier date this lengthy
time gap is inadequate to demonstrate a causal connection. See Buytendorp v.
Extendicare Health Servs., Inc., 498 F.3d 826, 836 (8th Cir. 2007) (An inference of a
causal connection between a charge of discrimination and an adverse employment action
can be drawn from the timing of the two events, but in general more than a temporal
connection is required to present a genuine factual issue on retaliation.) (quotation
omitted); Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1138 (8th Cir. 2006) (noting that
an interval as brief as two months did not show causation for purposes of establishing a
retaliation claim). Accordingly, counts 2 and 4 of plaintiffs complaint are dismissed.
Count 5 of plaintiffs complaint alleges that defendant was negligent in its
training, supervision, and retention of its employees.6 Defendant notes and plaintiffs do
6 Specifically, plaintiffs complaint alleges [d]efendant is negligent in training, retaining
and supervising managers and others described herein. (Complaint, at 43.) In plaintiffs brief,
they also argue that they have brought a claim for negligent infliction of emotional distress.
(Memorandum in Opposition to Summary Judgment, at 20-21.) This claim, however, was not
pled in plaintiffs complaint.
- 22 -
not dispute that Minnesota courts do not recognize a claim for negligent training. See
Mandy v. Minn. Mining & Mfg., 940 F. Supp. 1463, 1473 (D. Minn. 1996). Accordingly,
that claim is dismissed with prejudice, and the Court turns to plaintiffs claims for
negligent supervision and negligent retention.
The MHRA includes an exclusivity provision that precludes separate common law
negligence actions. See Minn. Stat. 363A.04; Moss v. Advance Circuits, Inc., 981
F. Supp. 1239, 1252 (D. Minn. 1997). [A] plaintiff may simultaneously pursue claims
under the MHRA and common law negligence that arise from the same underlying facts.
Moss, 981 F. Supp. at 1252 (citing Vaughn v. Northwest Airlines, Inc., 558 N.W.2d 736,
744-45 (Minn. 1997)). However, a plaintiffs negligence claims must be founded on a
duty of care independent from duties owed under the MHRA. Id. In Moss, a court
applying these principles held that negligent retention and negligent supervision claims
were preempted where [p]laintiffs negligence claims [were] based entirely on [an
employers] actions after being made aware of [an employees] alleged discriminatory
conduct. 981 F. Supp. at 1252. The Court encounters a nearly identical situation here.
Plaintiffs brief explanation does not address Moss, and appears to base their claims on
defendants duty to address racial harassment in the workplace, a duty that falls squarely
within the province of the MHRA. Accordingly, this Court concludes that plaintiffs
negligence claims are preempted by the MHRAs exclusivity provision, and count 5 of
plaintiffs complaint is dismissed.
This case will be placed on the Courts next available trial calendar.
- 23 -
Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants Motion for Summary Judgment [Docket
No. 14] is GRANTED in part and DENIED in part as follows:
1. As to plaintiffs hostile work environment claims (Counts 1 and 3),
defendants motion for summary judgment is DENIED.
2. As to plaintiffs retaliation claims and negligence claims (Counts 2, 4, and
5), defendants motion for summary judgment is GRANTED. Counts 2, 4, and 5 of
plaintiffs complaint are DISMISSED WITH PREJUDICE.
DATED: July 8, 2008 s/ John R. Tunheim
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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